Housing Law Commons^™

An Affirmative Approach To The Supreme Court's Major Questions Doctrine & Chevron Skepticism, Brandon Weiss

Scholarly Articles in Law Reviews & Journals

In light of the Major Questions Doctrine and the U.S. Supreme Court’s broader retrenchment from Chevron, which for forty years has dictated that in the face of statutory ambiguity courts will defer to reasonable agency interpretations, difficult questions arise for agency officials. For example, as the U.S. Department of Housing and Urban Development (HUD) considers options for implementing the Federal Fair Housing Act, some scholars have cautioned against running afoul of the Court’s recent jurisprudence and have argued for a relatively conservative approach to rulemaking, focused on voluntary incentives for compliance.

In this Essay, I disagree and argue for a …

Averting Plausibility Pleading’S Threats To Novel Fha Legal Claims, Tanya Pierce, Aric Short

Faculty Scholarship

Plausibility pleading requirements articulated by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal continue to confound even well-intentioned courts. But for courts inclined to avoid grappling with modern applications of existing law, they provide ideal camouflage: a way of relying on procedural justifications to ostensibly side-step substantive law decisions—while in effect creating de facto law that robs litigants of their day in court. These negative, unintended consequences of Twombly and Iqbal are vividly illustrated in recent federal litigation brought under the Fair Housing Act involving claims of landlord liability for tenant-on-tenant harassment.

This Article …

Persistent Impediments And The Geography Of “Affirmatively Furthering” Fair Housing: The Case Of Erie County, Ny, Jason Knight, Heather R. Abraham, Christopher Holtkamp, Russell Weaver

Journal Articles

Despite the passage of the Fair Housing Act in 1968, segregation and discrimination remain key characteristics of the American housing system. The Act sought to reverse decades of private and public sector policies that contributed to segregated neighborhoods and the exclusion of protected classes from equal access to housing. Under the Act, communities receiving funds from US Department of Housing and Urban Development (HUD) are required to “affirmatively further fair housing” (AFFH). This paper examines the AFFH mandate as operationalized by HUD grantees in Erie County, NY, by evaluating six Analysis of Impediments (AI) to Fair Housing reports prepared from …

On Fragmentation, Boundary Problems, And Movement Toward A Regional Fair Housing Regime In Erie County, Ny, Russell Weaver, Christopher Holtkamp, Jason Knight, Heather R. Abraham

Journal Articles

Prior to recent rule changes, which are still being deliberated as of this writing, Department of Housing and Urban Development (HUD) grantee communities charged with Affirmatively Furthering Fair Housing (AFFH) have been required to perform regular analyses of impediments (AIs) that identify barriers to fair housing in their territories. A central element of the AI is the delineation of racially or ethnically concentrated areas of poverty (R/ECAPs). Traditionally, grantees identify R/ECAPs using data for their jurisdictions only, ignoring surrounding communities. Doing so provides local decision-makers with knowledge about spaces in their territories where housing security might be relatively problematic, and …

Breaking Free From "Crime-Free": State-Level Responses To Harmful Housing Ordinances, Jenna Prochaska

Lewis & Clark Law Review

Municipalities throughout the country enforce broad and harmful crime-free housing and nuisance property ordinances (CFNOs)—local laws that encourage landlords to evict or exclude tenants from housing opportunities based on their contact with the criminal legal system or calls for police help. There is little evidence that CFNOs are effective at achieving their stated goal of increasing community safety, and there is significant evidence that they harm Black and Latinx communities, survivors of domestic violence, individuals with disabilities, and low-income tenants and communities more broadly. Despite more than a decade of legal advocacy successfully challenging CFNOs using a range of legal …

Assessing The Prospects For Fair Housing, John Infranca

Suffolk University Law School Faculty Works

This is a review of Furthering Fair Housing: Prospects for Racial Justice in America’s Neighborhoods, a 2021 collection of essays edited by Justin P. Steil, Nicholas F. Kelly, Lawrence J. Vale and Maia S. Woluchem. Furthering Fair Housing provides a detailed account of the long history leading to the 2015 affirmatively further fair housing rule, an evaluation of the short-lived rule’s effects and potential flaws, and a robust set of insights and recommendations for both federal officials revising the rule and local officials tasked with implementing it going forward. This review summarizes the volume’s individual chapters before discussing a few …

Sexual Orientation And Gender Identity Discrimination Claims Under The Fair Housing Act After Bostock V. Clayton County, Rigel C. Oliveri

Faculty Publications

On June 15, 2020, the Supreme Court handed down a landmark decision in Bostock v. Clayton County, Georgia, ruling by a vote of 6-3 that Title VII of the Civil Rights Act of 1964 protects gay, lesbian, and transgender employees from discrimination. The majority held that the statute's prohibition against discrimination in employment "because of ... sex" necessarily applies to discrimination based on sexual orientation and transgender identity.

This decision will undoubtedly have ramifications reaching beyond the employment context because many other federal statutes contain language similar to that in Title VII. In particular, the federal Fair Housing Act (FHA), …

Towards A Law Of Inclusive Planning: A Response To “Fair Housing For A Non-Sexist City”, Olatunde C.A. Johnson

Faculty Scholarship

Noah Kazis’s important article, Fair Housing for a Non-sexist City, shows how law shapes the contours of neighborhoods and embeds forms of inequality, and how fair housing law can provide a remedy. Kazis surfaces two dimensions of housing that generate inequality and that are sometimes invisible. Kazis highlights the role of planning and design rules – the seemingly identity-neutral zoning, code enforcement, and land-use decisions that act as a form of law. Kazis also reveals how gendered norms underlie those rules and policies. These aspects of Kazis’s project link to commentary on the often invisible, gendered norms that shape …

The Never-Ending Grasp Of The Prison Walls: Banning The Box On Housing Applications, Ashley De La Garza

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

The Lihtc Program, Racially/Ethically Concentrated Areas Of Poverty, And High-Opportunity Neighborhoods, Brandon Weiss, Kirk Mcclure, Anne R. Willamson, Hye-Sung Han

Scholarly Articles in Law Reviews & Journals

The Low-Income Housing Tax Credit ("LIHTC") program remains the nation's largest affordable housing production program. LIHTC units are under-represented in the neighborhood that both promote movement to high opportunity neighborhoods and affirmatively further fair housing. State and local officials should play an active role in guiding site selection decisions and ensuring that LIHTC developments are located in a manner that affirmatively furthers fair housing. Planners can use newly available data discussed herein to identify high-opportunity tracts.

The Hidden Fences Shaping Resegregation, Jeannine Bell

Articles by Maurer Faculty

This Article offers a window into the experiences that inform the neighborhood choices of middle-class and upper-middle-class Blacks. As I suggest below, there are many hidden fences, walling off white neighborhoods and restricting Blacks’ housing choices in de facto ways. These hidden fences exist in the form of the many challenges Blacks face when moving to white neighborhoods. The obstacles to easy, contented lives range from police harassment to anti-integrationist violence that push Blacks into less affluent neighborhoods. Ultimately, this Article demonstrates how race can circumscribe housing choice and social mobility, even in the absence of legal barriers restricting where …

Arlington Heights Won In The Supreme Court But The Fair Housing Act's Goal Of Promoting Racial Integration Saved The Low-Income Housing, Henry Rose

Faculty Publications & Other Works

In the early 1970’s, a developer sought a zoning change to a parcel of land in Arlington Heights, Illinois that would allow for the construction of government-subsidized low income housing. Arlington Heights denied the zoning change and the developer and several potential residents of the housing sued Arlington Heights arguing that this denial violated both equal protection under the Fourteenth Amendment of the United States Constitution and the federal Fair Housing Act (FHA). In Vil. Of Arlington Heights v. Metro. Housing Dev., 429 U.S. 252 (1977), the case reached the United States Supreme Court on the equal protection issue and …

Testing Fannie Mae's And Freddie Mac's Post-Crisis Self-Preservation Policies Under The Fair Housing Act, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

Beginning in the 1930s, the federal government adopted programs and policies toward safe and decent housing for all. The initiatives included the creation of the Federal Housing Administration that, among other things, spurred mortgage lending by guaranteeing mortgage loans to low- and moderate-income borrowers. The creation of the secondary mortgage market by Fannie Mae and Freddie Mac (“GSEs”) helped provide more liquidity for loan originators. However, somewhere along the way, these GSEs lost their way, as they pursued profitability without regard to risk and heedlessly bought mortgages without considering quality.

The overabundance of poor quality mortgages led to the housing …

Carson’S Call Of Duty, David J. Reiss

Cornell Law Faculty Working Papers

Dr. Ben Carson, the nominee for Housing and Urban Development Secretary, has made almost no public pronouncements about housing policy. The one exception is a 2015 Washington Times opinion piece in which he addresses the Obama Administration’s Affirmatively Furthering Fair Housing rule. While Dr. Carson appears to agree with the Obama Administration’s diagnosis of the problem of segregation, he attacks its solution. If he refuses to vigorously enforce the rule at HUD, it is still incumbent on him to address the underlying problem it was meant to address.

Segregative-Effect Claims Under The Fair Housing Act, Robert G. Schwemm

Law Faculty Scholarly Articles

Two types of discriminatory-effect claims have been recognized under the federal Fair Housing Act (FHA): (1) disparate impact; and (2) segregative effect. Neither requires a showing of illegal intent, and both, according to a 2013 regulation promulgated by the U.S. Department of Housing and Urban Development (HUD), are subject to the same three-step burden-shifting proof scheme, which assigns the plaintiff the initial burden of proving that the defendant’s challenged practice causes a discriminatory effect. Both the disparate-impact and segregative-effect theories date back to appellate decisions from the 1970s, although the Supreme Court’s endorsement of the former in 2015 in Texas …

Side By Side: Revitalizing Urban Cores And Ensuring Residential Diversity, Andrea Boyack

Faculty Publications

Fifty years ago, the Reverend Martin Luther King, Jr. expressed a hope that someday people of all races would “live side by side in decent, safe, and sanitary housing.” Residential patterns in America today, however, remain highly segregated by race and income. The Fair Housing Act outlawed overt housing discrimination and unjustified discriminatory impacts, but zoning laws and housing finance structures have continued to impede housing integration, leaving communities nearly as racially homogenous as they were in the mid 20th century. These separate neighborhoods are far from equal. The majority of people who reside in financially distressed city-center neighborhoods are …

Affirmatively Furthering Neighborhood Choice: Vacant Property Strategies And Fair Housing, James J. Kelly Jr.

Journal Articles

When many of us think about fair housing enforcement, scenes involving undercover apartment applicants ferreting out racially biased landlords come to mind. Indeed, fair housing "testers" have been and continue to be an important element of civil rights accountability.' However, implementation of the Fair Housing Act of 1968 has had at least as much to do with increasing the supply of decent, affordable housing options to members of protected groups as with assuring those individuals that they will not be denied a particular housing unit because of the color of their skin or a disability.

This macro aspect of fair …

Disparate Impact And Integration: With Tdca V. Inclusive Communities The Supreme Court Retains An Uneasy Status Quo, Rigel C. Oliveri

Faculty Publications

This article begins with a brief history of disparate impact theory as it relates to fair housing cases. It then proceeds to an overview of two previous cases on this issue to reach the Supreme Court in recent years. Next, it analyzes the Inclusive Communities opinion, discussing both the Court's affirmation of integration as a fair housing goal and its skepticism of whether plaintiffs can succeed using disparate impact theory in cases like the one at bar. The article concludes by locating the opinion's focus on competing priorities within the historical tension between affordable housing/community development and integration and discussing …

Overcoming Structural Barriers To Integrated Housing: A Back-To-The-Future Reflection On The Fair Housing Act's "Affirmatively Further" Mandate, Robert G. Schwemm

Law Faculty Scholarly Articles

A key goal of the 1968 Fair Housing Act (“FHA”), which was passed as an immediate response to Dr. Martin Luther King, Jr.’s assassination, was to replace the ghettos with “truly integrated and balanced living patterns.” It hasn’t happened. Today, more than four decades after the FHA’s passage, “residential segregation remains a key feature of America’s urban landscape,” continuing to condemn new generations of minorities to a second–class set of opportunities and undercutting a variety of national goals for all citizens.

But recent developments dealing with an underutilized provision of the FHA – § 3608’s mandate that federal housing funds …

Discriminatory Housing Advertisements On-Line: Lessons From Craigslist, Rigel C. Oliveri

Faculty Publications

The Fair Housing Act makes it illegal to publish discriminatory housing advertisements. This has long been applied to newspapers, which have effectively screened all discriminatory housing ads from sight. However, in 1996 Congress created a loophole when it immunized website operators from liability for the content posted to their sites by third parties. Without publisher liability, websites have no incentive to screen out discriminatory housing ads. The result is that such ads are proliferating in cyberspace.While this situation is problematic from a fair housing standpoint, it presents a valuable opportunity. For the first time in a generation discriminatory housing advertisements …

The Need To Prioritize The Affirmative Furthering Of Fair Housing: A Case Statement, Symposium: New Strategies In Fair Housing, James Robert Breymaier

Cleveland State Law Review

The affirmative furthering of fair housing involves racially and economically pro-integrative policies and programs to produce structural changes that expand housing choices and improve individual opportunities.

The Future Of Fair Housing And Fair Credit: From Crisis To Opportunity, Symposium: New Strategies In Fair Housing, John A. Powell, Jason Reece

Cleveland State Law Review

The following paper provides an assessment of the current housing and credit crisis from a racial justice lens. The paper explores how race was interwoven into the current crisis and demonstrates the racialized impacts of the housing and credit crisis. We also explore some of the current challenges facing fair housing in our society, presenting concepts and models of reform to promote true integration with opportunity. We close with a new paradigm for addressing fair housing in the future and utilizing the opportunities presented by this crisis to produce a fair housing opportunity and a just society for all.

Jones V. Mayer Revisited, Symposium: New Strategies In Fair Housing, Mira Tanna

Cleveland State Law Review

This article revisits Jones v. Mayer. Jones v. Mayer, decided by the U.S. Supreme Court in 1968, was the first Supreme Court case to rule that the Civil Rights Act of 1866--which guarantees the same right of all citizens to inherit, purchase, lease, sell, hold, and convey real and personal property as is enjoyed by white citizens--applies not only to actions of the state but also to private parties.

Substantial Equivalency And The Future Of Fair Housing In Ohio, Symposium: New Strategies In Fair Housing, G. Michael Payton, Matthew D. Miko

Cleveland State Law Review

This article reviews recent Ohio court decisions and discusses their potential impact on the continued certification of the state's fair housing law as “substantially equivalent.” It also addresses several responsive steps being taken by the Ohio Civil Rights Commission in order to re-establish the rights and responsibilities under the state's fair housing law.

New Strategies For Old Problems: The Fair Housing Act At 40, Symposium: New Strategies In Fair Housing, Jeffrey D. Dillman

Cleveland State Law Review

This article discusses the advances in fair housing since 1968 while analyzing the evidence of persistent discrimination and segregation. It looks at past strategies of the enforcement of the FHA by fair housing groups and the education and outreach performed by the groups. Additionally, the author provides commentary on the future of fair housing.

Cox, Halprin, And Discriminatory Municipal Services Under The Fair Housing Act, Robert G. Schwemm

Law Faculty Scholarly Articles

This Article deals with Cox v. City of Dallas, Halprin v. Prairie Single Family Homes of Dearborn Park Ass’n, and the issue of whether the Federal Fair Housing Act (FHA) should be interpreted to outlaw discrimination in the provision of services by local governments. Part I describes the Cox litigation and its connection with Halprin. Part II surveys the pre-Cox cases that have dealt with discriminatory municipal services. Part III analyzes the FHA's relevant provisions and their legislative history and concludes that Cox and Halprin were wrong to deny FHA protection to current residents. Part IV …

Fair Housing Is Good Medicine: Applying The Fair Housing Act's No-Inquiry Regulation When Housing And Health Care Are Provided Together, Eric M. Carlson

ExpressO

The Fair Housing Act (FHA) protects individuals with disabilities from discrimination in the housing or rental markets. The FHA’s no-inquiry regulation prohibits a landlord from inquiring into an applicant’s health condition.

Although the FHA routinely has been applied to long-term care facilities – usually to protect a group home or similar facility from unfair zoning practices – the no-inquiry regulation has not been utilized to challenge the admissions practices of assisted living facilities, nursing facilities, and other long-term care facilities. Indeed, at first glance, a no-inquiry rule seems a poor fit for a facility that provides health care along with …

The Future Of Fair Housing Litigation, Robert G. Schwemm

Law Faculty Scholarly Articles

This article is a revised version of the keynote address I gave at a conference entitled "Where is Fair Housing Headed in This Decade?" sponsored by The John Marshall Law School in the Fall of 1992. As its title implies, the conference focused on the future of fair housing, and my address dealt with certain developments that I felt were not only observable in the early years of the 1990s, but were also likely to be important in the remaining years of this decade.

Many of these developments—such as the growing role of the federal government in fair housing enforcement …

A Constitutional Right Of Religious Exemption: An Historical Perspective, Philip A. Hamburger

Faculty Scholarship

Did late eighteenth-century Americans understand the Free Exercise Clause of the United States Constitution to provide individuals a right of exemption from civil laws to which they had religious objections? Claims of exemption based on the Free Exercise Clause have prompted some of the Supreme Court's most prominent free exercise decisions, and therefore this historical inquiry about a right of exemption may have implications for our constitutional jurisprudence. Even if the Court does not adopt late eighteenth-century ideas about the free exercise of religion, we may, nonetheless, find that the history of such ideas can contribute to our contemporary analysis. …

Litigating A Fair Housing Case In The 90'S, Kenneth J. Kowalski, Edward Kramer

Law Faculty Articles and Essays

Recent statutory amendments to the Federal Fair Housing Act of 1968, 42 U.S.C. Sections 3601 et seq., will be the impetus for substantial litigation in this decade. The Fair Housing Amendments Act of 1988, which was enacted on September 13, 1988 and became effective on March 12, 1989, established new protected classes, created an administrative law judge system to enforce the law, and strengthened many of the original provisions of the Act. This article will review the Amendments, their impact on litigating a fair housing case, and recent case law in the area.